Age Discrimination: “Fire All the Old People”…”Just Kidding.”

ADEA Age Discrimination Alabama Employment Law Just Kidding
There is no “just kidding” defense in age discrimination law suits.

If one of your executives writes “Fire All the Old People,” you can expect difficulty in defending a claim under the Age Discrimination in Employment Act.  (“ADEA”)  Moreover, the odds are very slim that you can win your law suit by claiming that your executive was “just kidding.”  Those are the hard lessons that an Alabama employer learned in Wheat v. Rogers & Willard, Inc., No. 16-0282-WS-B, 2017 WL 4278347 (S.D. Ala. Sep. 26, 2017).

Ralph Wheat was a 77-year-old project manager/estimator when he was fired on May 2, 2014.  The termination decision was made by the majority owners of his company, Mike Rogers and Steve Willard.  One year prior, May 2013, Rogers attended a conference and made notes.  Under a heading titled “Attracting and Retaining employees,” Rogers wrote “‘Fire all the old people.’ Fiat President.”  Next to that statement he wrote:  “many large companies bringing in new bloo[d].” Rogers also wrote:  “Older guys — Ralph & Jerry — Mentor to their replacements — same with Diane.”  Finally, Rogers wrote:  “‘Paint’ a vision of what company will look like in three years, i.e., new, younger employees ….”

United States District Court Judge William Steele found that those notes were direct evidence of Mr. Rogers’ discriminatory intent under the ADEA.  In attempting to defend the case, Rogers & Willard offered an affidavit from Rogers for the proposition that he did not really mean what his notes said.  Based upon that assertion of Rogers alleged true intent, Rogers & Willard asked to have the case dismissed at the summary judgment stage.  Judge Steele soundly rejected that argument:  “The defendant offers no legal authority for its position that it can obtain summary judgment simply by its decisionmaker’s assertion that he did not mean what he wrote — a position which, if accepted, would amount to an automatically successful ‘just kidding’ defense. …[T]he Court rejects the defendant’s unsupported argument.”

Judge Steele’s ruling means that a jury will decide whether Mike Rogers was biased against older people, and whether Ralph Wheat’s termination violated the ADEA.  The Wheat case simply reinforces an important point that I’ve written about before:  Anything you say can and will be used against you.  The Wheat case might have turned out differently if Mr. Scott never made those notes.  But, once he put his thoughts on paper, he provided the terminated employee with enough ammunition to send the case to trial.